Madras High Court
Pappa vs Gandhimathi on 22 December, 2023
S.A.No.670 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED :22.12.2023
CORAM
THE HONOURABLE MR. JUSTICE S.SOUNTHAR
S.A.No. 670 of 2017 and
C.M.P.No.17405 of 2017
1.Pappa
2.Varadharajan ...Appellants
Vs.
1.Gandhimathi
2.Nandhini
3.Minor Santhiya
4.Minor Dinesh ...Respondents
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure Code,
against the judgment and decree of the Sub-Ordinate Judge at Kallakurichi dated
30.06.2014 in A.S.No.52 of 2012 confirming the judgment and decree of the I
Additional District Munsif Court at Kallakurichi dated 18.01.2012 in
O.S.No.226 of 2006.
For Appellants : M/s.P.Valliappan
Senior Counsel
for Mr.S.M.S.Shriram Narayanan
For Respondents : Mr.N.Manokaran
https://www.mhc.tn.gov.in/judis
1/26
S.A.No.670 of 2017
JUDGEMENT
The unsuccessful plaintiffs in a suit for specific performance is the appellants. The suit was dismissed by the Trial Court in respect of the main relief of specific performance and suit was decreed in respect of alternative relief for return of advance amount. Aggrieved by the same, the plaintiffs preferred an appeal and the First Appellate Court also confirmed the findings of the Trial Court. Hence, the plaintiffs are before this Court.
2. According to the appellants/plaintiffs, the property covered by suit agreement originally belonged to 1st respondent's husband and father of respondents 2 to 4 Velusamy. After death of Velusamy, the respondents/defendants succeeded to his estate and they had been enjoying the property. The 1st respondent, mother of other respondents was acting as Manager of the family. The suit sale agreement was entered into by 1st plaintiff and 1st defendant where under 1st respondent/1st defendant agreed to sell the suit property to 1st plaintiff for a sale consideration of Rs.1 lakh. The agreement was entered into by 1st defendant in her capacity as Manager binding shares of minor defendants. On the date of agreement, a sum of Rs.30,000/- was paid as an https://www.mhc.tn.gov.in/judis 2/26 S.A.No.670 of 2017 advance. It was agreed between the parties that balance amount of Rs.70,000/- should be paid on or before 14.03.2006. Though the appellants were ready and willing to pay the balance sum of Rs.70,000/- and in spite of several demands, the respondents failed to complete the sale transaction. Therefore, a legal notice was issued by the 1st appellant on 01.03.2006 calling upon the 1st defendant to receive the balance sale consideration and complete the sale transaction. In spite of the same, the 1st respondent failed to come forward to execute the sale deed. In these circumstances, the appellants were constrained to file a suit for specific performance.
3. The respondents filed a written statement wherein it was claimed by them that on the date of suit sale agreement, yet another agreement christened as consent deed was entered into between the parties where under the consideration for sale was mentioned as Rs.1,60,000/-( Rupees one lakh sixty thousand only). It was averred that a sum of Rs.30,000/- was paid as an advance and appellants agreed to deposit a sum of Rs.60,000/- in the name of minor respondents 2 to 4 in a nationalized bank and agreed to pay the balance amount of Rs.70,000/- within 14.03.2006. It was also contended by the respondents that the appellants burked relationship between the parties. The 1st plaintiff's husband, the 2nd https://www.mhc.tn.gov.in/judis 3/26 S.A.No.670 of 2017 plaintiff is the elder brother of Velusamy namely the deceased husband of 1 st defendant. The respondents also denied the averments in the plaint that 1st appellant was always ready and willing to perform her part of the contract. It was specifically pleaded by the respondents that appellants never had shown any interest to deposit Rs.60,000/- in the name of minor respondents 2 to 4 as agreed in the consent deed.
4. The 1st respondent filed a separate written statement on behalf of the minor respondents 2 to 4 wherein it was contended that the agreement was entered into by 1st respondent on behalf of minors' share without obtaining sanction from the Court and therefore, the suit for specific performance of the same was unsustainable.
5. Before the Trial Court, the husband of the 1st appellant was examined as P.W.1 and the attestor to Ex.A1 has been examined as P.W.2 on behalf of appellants/plaintiffs. Three documents were marked as Ex.A1 to Ex.A3 on behalf of the appellants. The 1st defendant was examined as D.W.1 and yet another attestor to Ex.A1 was examined as D.W.2. On behalf of the respondents/defendants, 7 documents were marked as Ex.B1 to Ex.B7. https://www.mhc.tn.gov.in/judis 4/26 S.A.No.670 of 2017
6. The Trial Court, on appreciation of oral and documentary evidence available on record, came to the conclusion that as per the consent deed executed by appellants on the date of suit sale agreement, the consideration agreed was Rs.1,60,000/- . The appellants having failed to disclose the consent deed were not entitled to specific performance of the suit sale agreement. Hence, the Trial Court granted an alternative relief of return of advance amount. Aggrieved by the same, the appellants preferred an appeal in A.S.No.52 of 2012 on the file of Sub- ordinate Judge, Kallakurichi. The First Appellate Court came to the conclusion that consent deed pleaded by respondents was not valid in law and the suit sale agreement, Ex.A1 was valid and binding. However, the first Appellate Court came to the conclusion that readiness and willingness of 1 st appellant to complete the sale transaction was not proved and hence dismissed the appeal by confirming the decree for return of advance granted by Trial Court. Aggrieved by the same, the plaintiffs are before this Court.
7. This Court at the time of admission formulated the following substantial questions of law vide order dated 02.11.2023 and the same reads as follows:-
https://www.mhc.tn.gov.in/judis 5/26 S.A.No.670 of 2017 “(i) Whether the Courts below are correct in law in its application of Section 16(c) of the Specific Relief Act especially when the appellants have proved their readiness and willingness by issuing legal notice calling upon the respondents to execute the sale deed well within the period provided under Ex.A1, sale agreement ?;
(ii) Whether the Lower Appellate Court is correct in law in refusing to exercise its discretion to grant decree for specific performance especially when the appellants have proved their valid execution of Ex.A1 sale agreement and their readiness to have the sale deed executed?”
8. The learned Senior Counsel appearing for the appellants submitted that the 1st appellant proved her continuous readiness and willingness by issuing pre- suit notice calling upon the defendants to receive the balance amount and complete the sale transaction well within the time stipulated in agreement and the respondents failed to give any reply to the said pre-suit notice. Therefore, the continuous readiness and willingness on the part of the 1 st appellant was very well proved and the same has not been properly considered by the First Appellate Court. In support of his contentions, the learned Senior Counsel had https://www.mhc.tn.gov.in/judis 6/26 S.A.No.670 of 2017 taken this Court to evidence of P.W.1 and P.W.2 and also admissions of D.W.1.
9. The learned counsel for the respondents submitted that except the averment in the plaint that 1st appellant was always ready and willing to perform her part of the contract, there is no evidence available on record to prove continuous readiness and willingness from the date of agreement down to the date of filing of the suit. Therefore, the first appellate Court was justified in coming to the conclusion that readiness and willingness was not proved by the plaintiffs. The learned counsel further submitted that in order to prove readiness and willingness, the 1st appellant/1st plaintiff not even entered witness box and subjected herself to cross-examination. Therefore, adverse inference shall be drawn against the plaintiffs. The learned counsel by taking this Court to the evidence of D.W.2, another attestor to the Ex.A1 sale agreement, submitted that evidence of D.W.2 proved another sale agreement between the parties in the name of consent deed for a higher consideration. The plaintiffs failed to disclose the same before the Court. Therefore, they are not entitled to discretionary relief of specific performance.
10. The learned counsel further submitted that admittedly agreement https://www.mhc.tn.gov.in/judis 7/26 S.A.No.670 of 2017 mentioned property belonged to 1st respondent's husband Velusamy and on his death, the property will devolve on respondents/defendants and also mother of Velusamy and the mother of Velusamy was not made as a party to this suit. When respondents are not having right over the entire agreement mentioned property, a decree for specific performance of their share in the agreement mentioned property is not maintainable in the absence of prayer for partition. In support of his contentions, the learned counsel relied on following judgments :-
1. Kamal KumarVs Premlata Joshi and others reported in 2019 (3) SCC 704.
2. Mehboob-Ur-Rehman(Died) through legal representatives Vs Ashanul Ghani reported in 2019 (19) SCC 415.
3. C.S.Venkatesh Vs A.S.C.Murthy reported in 2020 (3) SCC 280.
4. Shenbagam and others Vs K.K.Rathinavel reported in AIR 2022 SC 1275.
5.U.N.Krishnamurthy (since deceased) through legal representatives Vs A.M. Krishnamurthy reported in AIR 2022 SC 3361.
6. Jaswinder Kaur(now deceased) through her legal representatives and others Vs Gurmeet Singh and others reported in 2017 (12) SC 810.
https://www.mhc.tn.gov.in/judis 8/26 S.A.No.670 of 2017
7.Shanmughasundaram and Others Vs Diravia Nadar( dead) by L.R's and another reported in 2005 (10) SCC 728.
8. Citadel Fine Pharmaceuticals Vs Ramaniyam Real Estates Private limited and another reported in 2011 (9) SCC 147.
9. M.Jayaprakash Narayanan Vs Santhammal and others reported in 2018 (1) CTC 701 DB.
10. N.Sundaramurthy Vs Suseeladevi reported in 2017 SCC OnLine Mad 13557:AIR 2017 Mad 250.
11. Ritu Saxena Vs.J.S.Grover and another reported in 2019 (9) SCC
132.
11. In reply, the learned Senior Counsel appearing for the appellants submitted that under Section 22 of Specific Relief Act, the Court can grant a relief of specific performance in respect of the share of the vendors and after getting the sale deed executed in respect of a share of the vendors, the vendee can very well file a separate suit seeking partition. In support of his contentions, the learned Senior Counsel relied on the following judgments.
i) Karthar Singh Vs Harjinder Singh and Others reported in (1990) 3 SCC 517.
https://www.mhc.tn.gov.in/judis 9/26 S.A.No.670 of 2017
ii) P.C.Varghese Vs Devaki Amma Balambika Devi and others reported in 2005 AIR SCW 5622.
iii) Kammana Sambamurthy (deceased by L.R.'s) Vs Kalipatnapu Atchutamma (deceased by L.R) and Others reported in 2010 AIR SCW 6219.
12. As far as execution of Ex.A1 is concerned, it is an admitted fact that the execution of Ex.A1 is clearly admitted by D.W.1 in cross-examination. Even in the pleadings, the execution of Ex.A1, suit sale agreement is admitted . The suit sale agreement is a registered agreement dated 05.05.2005 where under, the respondents agreed to convey their 1/3rd interest in the agreement mentioned property in favour of 1st appellant for sale consideration of Rs.1 lakh. As per the terms of agreement, a sum of Rs.30,000/- was paid as an advance. The time fixed for performance was till 14.03.2006. Even prior to expiry of the time fixed in the agreement, notice was issued by 1st appellant under Ex.A2 dated 01.03.2006 calling upon the 1st respondent to receive the balance amount and execute the sale deed. The said notice was received by 1st respondent under Ex.A3. However, for the reasons best known to her, she had not replied to the notice. Then, the suit was filed by the 1st appellant immediately on 17.03.2006 within three days from the date of expiry of time fixed for performance. With https://www.mhc.tn.gov.in/judis 10/26 S.A.No.670 of 2017 regard to the financial status of the 1st appellant to pay balance amount due under the agreement, there is no serious dispute. The 1st respondent failed to issue any reply to the pre-suit notice issued by the 1 st appellant denying her financial status or her readiness and willingness to perform her part of the contract. Likewise, even in the written statement filed by the defendants, the financial status of the 1st appellant to pay balance amount was not at all disputed. The main defence raised by the respondents was, on the date of Ex.A1 suit sale agreement, there was a separate transaction where under, the appellants agreed to purchase the suit property for a higher sale consideration of Rs.1,60,000/- and a consent deed was executed mentioning the higher sum. However, the consent deed allegedly executed on the date of suit sale agreement was not marked. When 2nd appellant was examined as P.W.1, the consent deed was shown to him. He admitted the signature and the thumb impression of 1 st appellant available in the consent deed. However, he denied the contents of the document. The Trial Court only marked the signature and thumb impression as Ex.A2 and Ex.A3. The entire consent deed has not been marked before the Trial Court. The respondents, at least during examination of 1st respondent/D.W.1 or examination of other attestor as D.W.2, could have marked the consent deed through them. However, no attempt was made to mark the entire consent deed https://www.mhc.tn.gov.in/judis 11/26 S.A.No.670 of 2017 before the Court. Therefore, this Court is not in a position to refer to the contents of the consent deed other than the signature and thumb impression which were marked. In fact, the Trial Court mistakenly considered the contents of the consent deed which was not marked and came to the conclusion that there was a separate transaction on the date of suit sale agreement and therefore, the appellants were not entitled to specific performance. However, the First Appellate Court after considering the evidence of D.W.2 came to the conclusion that the consent deed relied on by the respondents was not valid. In the written statement, the respondents contended that under the consent deed the appellants agreed to pay a sum of Rs.1,60,000/-. The attestor to Ex.A1 who was examined as D.W.2 deposed as if under the terms of consent deed, the appellants agreed to pay Rs.2 lakhs. The attestor to said consent deed has not been examined by the respondents. By taking into consideration all these factual aspects, the First Appellate Court came to the conclusion that consent agreement pleaded by the respondents was not valid and only the suit sale agreement, Ex.A1 was valid document. The said factual conclusion reached by the first appellate Court is based on appreciation of entire evidence available on record and the same need not be interfered in the absence of any perversity.
https://www.mhc.tn.gov.in/judis 12/26 S.A.No.670 of 2017
13. As far as readiness and willingness is concerned, the First Appellate Court came to the conclusion that 1st appellant failed to prove her continuous readiness and willingness. In the case on hand, the financial capacity of the appellants to pay balance sum of Rs.70,000/- has not been seriously disputed. In fact, when D.W.1 was examined, she clearly admitted that 1st appellant called her over phone and requested her to complete the sale transaction by receiving the balance sale consideration. Apart from that, even before expiry of time limit fixed under agreement (14.03.2006), the 1st appellant issued a pre-suit notice on 01.03.2006 calling upon the respondents to complete the sale transaction by receiving the balance amount. For the pre-suit notice issued by the 1st appellant, the 1st respondent failed to issue any reply. Thereafter, the suit was filed on 17.03.2006 within three days from the date of expiry of time fixed for performance. In these circumstances, the 1st appellant had shown her continuous readiness and willingness to perform her part of the contract from the inception of the agreement to the date of filing of the suit. It is settled law that plaintiff who seeks specific performance need not show the coin before the Court. If he is able to prove, at the relevant point of time, he was in a position to mobilise the funds to pay balance consideration that is sufficient. In the case on hand, well prior to the expiry of the time, the 1 st appellant called the 1st respondent to https://www.mhc.tn.gov.in/judis 13/26 S.A.No.670 of 2017 receive the balance sale consideration and complete the sale transaction. She also issued a legal notice well within a time and the 1st respondent failed to issue any reply for the said legal notice. In these circumstances, the conclusion reached by the First Appellate Court that 1st appellant failed to prove her continuous readiness and willingness to perform her part of the contract is contrary to the evidence available on record and the same is liable to be set aside. Hence, both the substantial questions of law framed at the time of admission are answered in favour of appellants and against the respondents.
14. The learned counsel for the respondent submitted that respondents are not entitled to convey the entire 1/3rd share of the Velusamy in the agreement mentioned property when Velusamy's mother was alive. In this regard, it would be appropriate to refer to the judgment of Hon'ble Apex Court in the case of Karthar Singh Vs Harjinder Singh and Others reported in (1990) 3 SCC 517. The relevant observation of the Hon'ble Apex Court regarding the specific performance of share of the vendor in the agreement mentioned property reads as follows:-
“6. As regards the difficulty pointed out by the High Court, namely, that the decree of specific performance cannot be granted since the property https://www.mhc.tn.gov.in/judis 14/26 S.A.No.670 of 2017 will have to be partitioned, we are of the view that this is not a legal difficulty. Whenever a share in the property is sold the vendee has a right to apply for the partition of the property and get the share demarcated. We also do not see any difficulty in granting specific performance merely because the properties are scattered at different places. There is no law that the properties to be sold must be situated at one place. As regards the apportionment of consideration, since admittedly the appellant and respondent's sister each have half share in the properties, the consideration can easily be reduced by 50 per cent which is what the first appellate Court has rightly done”.
15. In A.Abdul Rashid Khan(Dead) and Others Vs P.A.K.A.Shahul Hamid and Others reported in 2000 (10) SCC 636 =MANU/SC/2734/2000, the Hon'ble Apex Court observed as follows:-
"15. Thus we have no hesitation to hold, even where any property is held jointly, and once any party to the contract has agreed to sell such joint property agreement, then, even if other co-sharer has not joined at least to the extent of his share, he is bound to execute, https://www.mhc.tn.gov.in/judis 15/26 S.A.No.670 of 2017 the sale deed. However, in the absence of other co- sharer there could not be any decree of any specified part of the property to the partitioned and possession given. The decree could only be to the extent of transferring the share of the appellants in such property to other such contracting party. In the present case, it is not in dispute that the appellants have 5/6 share in the property. So, the plaintiffs suit for specific performance to the extent of this 5/6th share was rightly decreed by the High Court which requires no interference"
16. In Narayanan Vs Kuppan and others reported in 2011 (2) MWN (Civil) 548, this Court observed as follows:-
“9. A mere poring over and perusal of the aforesaid judgments would amply make the point clear that even undivided shares could be the subject matter of Agreement to Sell and the only remedy open for such agreement holder is to get the specific share of the proposed seller carved out from the joint property and obtain Sale Deed in respect of the same. As such, I am of the considered view that the First Appellate Court was not right in simply holding that the said Agreement to Sell is bad in law and the First Appellate Court was not justified in reversing the https://www.mhc.tn.gov.in/judis 16/26 S.A.No.670 of 2017 judgment and decree of the Trial Court in ordering specific performance”.
17. In view of the law settled by Hon'ble Apex Court and this Court in the above mentioned case laws, there is no embargo on the court to grant specific performance of undivided share of the vendor. It is always open to the vendee to get the sale deed executed as per the decree for specific performance and then file a suit for partition. The passing of decree for specific performance in respect of undivided share gives a cause of action for agreement vendee to file a suit for partition. Because, mere agreement of sale will not create any interest in the property. Only after passing of decree for specific performance in respect of undivided share, he acquires interest in the property and consequently, entitled to maintain a prayer for partition. Therefore, the objection raised by the learned counsel for the appellants that the decree for specific performance cannot be granted in respect of undivided share of vendors is also not acceptable to this Court. In the case on hand, the respondents agreed to convey 1/3rd share of Velusamy under suit sale agreement. Velusamy died leaving behind respondents (wife and children) and his mother. The mother of Velusamy, who is having 1/15 (1/5 of 1/3) share in the suit property not joined as contracting party. Her share represents only a small fraction in the subject matter of agreement. Hence, as per https://www.mhc.tn.gov.in/judis 17/26 S.A.No.670 of 2017 decision referred above a specific performance decree can be granted in respect of respondents' 4/15 share in the property (4/5 of subject matter of agreement).
18. Regarding the plea raised by the respondents/defendants that sale agreement entered into by 1st respondent would not bind the minor respondents is concerned, in the sale agreement itself it was specifically mentioned that 1st respondent entered into agreement so as to bind other respondents, who are her heirs. When 1st respondent was examined as DW.1, she clearly admitted that after death of her husband, she has been maintaining minor respondents in her capacity as mother and she entered into suit sale agreement taking into consideration future of her minor children. She specifically admitted that suit sale agreement was entered into to meet her medical expenses and also the maintenance expenses of her children (minor respondents). The relevant portion of her admission in cross examination reads as follows:-
“vd; fztu; fhykhdJ gpd; vd; FHe;ijfspd; vjpu;fhyj;ij Kd;dpl;L jhthtpy; cs;s xg;ge;jj;ij vGjpbfhLj;Js;nsd; vd;why; rupjhd;//////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////// ///// nkYk; vd; itj;jpa brytpw;F gzk; njitg;gl;ljhy; xg;ge;jk; Vw;gLj;jpndd;/ vdf;F kUj;Jt bryt[ ghu;gg; jw;F vd; FHe;ijfspd; https://www.mhc.tn.gov.in/judis 18/26 S.A.No.670 of 2017 guhkupgg; pwf; hft[k;jhd; jhth xg;ge;jj;ij Vw;gLj;jp bfhLj;njd;/ vdJ tpUg;gj;jpdn; gupy;jhd; jhth xg;ge;jk; Vw;gl;lJ vd;whYk; mjid vGjpbfhLf;f jahuhf cs;nsdh vd;whYk; vdJ kUj;Jt brytpw;fhft[k; vdJ FHe;ijfspd; guhkupgg; pw;fhft[k; xg;ge;jk; Vw;gLj;jpndd;///////////////////////////////////////////////”
19. From the evidence of 1st respondent as DW.1, it is clear she entered into suit sale agreement to meet her medical expenses and the maintenance expenses of her minor respondents. Therefore, the suit sale agreement was entered into by 1st respondent in her capacity as Manager of Hindu joint family for legal necessity. From the evidence of 1st respondent, it is clear after death of her husband, her children, who are minors are in her custody. She also admitted that even during pendency of the suit, the minor respondents are living along with her. In such circumstances, it can be safely presumed that after death of 1 st respondent husband, she is acting as Manager of Hindu Joint Family consisting herself and her minor children. It is settled law mother can act as family manager of the hindu joint family in the absence of any other adult male member. It is also very well settled the Manager of the Hindu Joint Family can sell the interest of the minors in the joint family property to meet legal necessity. In this regard, useful reference may be made to the following decisions of the Hon'ble Apex https://www.mhc.tn.gov.in/judis 19/26 S.A.No.670 of 2017 Court.
20. In Sri Narayan Bal and Others Vs Sridhar Sutar and Others reported in (1996) 8 SCC 54, the Hon'ble Apex Court, while dealing with the applicability of Section 8 of Hindu Minority and Guardianship Act, 1956 observed as follows:-
“5. With regard to the undivided interest of the Hindu minor in joint family property, the provisions afore- culled are beads of the same string and need be viewed in a single glimpse, simultaneously in conjunction with each other. Each provisions, and in particular Section 8, cannot be viewed in isolation. If read together the intent of the legislature in this beneficial legislation becomes manifest. Ordinarily the law does not envisage a natural guardian of the undivided interest of a Hindu minor in joint family property. The natural guardian of the property of a Hindu minor, other than the undivided interest in joint family property, is alone contemplated under Section 8, whereunder his powers and duties are defined. Section 12 carves out an exception to the rule that should there be no adult member of the joint family in management of the joint family property, in which the minor has an undivided interest, a guardian may be appointed; but ordinarily no https://www.mhc.tn.gov.in/judis 20/26 S.A.No.670 of 2017 guardian shall be appointed for such undivided interest of the minor. The adult member of the family in the management of the Joint Hindu Family property may be a male or a female, not necessarily the Karta. The power of the High Court otherwise to appoint a guardian, in situations justifying, has been preserved. This is the legislative scheme on the subject. Under Section 8 a natural guardian of the property of the Hindu minor, before he disposes of any immovable property of the minor, must seek permission of the court. But since there need be no natural guardian for the minor's undivided interest in the joint family property, as provided under sections 6 and 12 of the Act, the previous permission of the Court under Section 8 for disposing of the undivided interest of the minor in the joint family property is not required. The joint Hindu family by itself is a legal entity capable of acting through its Karta and other adult members of the family in management of the joint Hindu family property. Thus section 8 in view of the express terms of Sections 6 and 12, would not be applicable where a joint Hindu family property is sold/disposed of by the Karta involving an undivided interest of the minor in the said joint Hindu family property. The question posed at the outset therefore is so answered”.
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21. In Raj Kumar Raghubanchmani Prasad Narain Singh Vs Ambica Prasad Singh (Dead) by Lawyers and Others reported in 1970 (3) SCC 350, the Hon'ble Apex Court, while dealing with the power of alienation available to the Manager of Hindu joint family observed as follows:-
"In any event, an alienation by the Manager of the Hindu joint family even without legal necessity is voidable and not void".
22. Therefore, it is settled law that the Manager of the Hindu joint family is entitled to sell the property of the Hindu joint family including the share of minor members for legal necessity and for benefit of the family. In the case on hand, the admission of 1st respondent as D.W.1 clearly establish the sale agreement was entered into to meet her medical expenses and maintenance of the minor respondents. In such circumstances, there is no difficulty in coming to the conclusion that sale agreement was entered into for legal necessity and for benefit of the joint family. Therefore, the sale agreement is valid and it is binding on the minor respondents. It is also settled law that Section 8 of Hindu Minority and Guardianship Act, 1956 is not applicable to the interest of the minor in https://www.mhc.tn.gov.in/judis 22/26 S.A.No.670 of 2017 Hindu joint family.
23. Even assuming Section 8 of said Act is applicable to the case on hand, still, if the property of the minor is alienated by natural guardian (Mother in this case, in the absence of father) without permission of the Court, the consequence would be the sale transaction is voidable at the option of minor and not void. In the case on hand, till date the minor respondents have not exercised their option of avoiding sale transaction. The plea raised by the 1st respondent in the written statement filed on behalf of minors would not amount to exercise of option by the minors. The law requires minor shall exercise option after attaining majority within three years. In the absence of such exercise of option by the minors, the sale transaction entered into by 1st respondent is binding on the minor's shares. Therefore, the plea raised by the 1st respondent as if the sale agreement will not bind share of minors is without any substance and the same is liable to be rejected.
24. In view of the answers given to the substantial questions of law framed at the time of admission, the second appeal stands allowed.
a) by setting aside the judgment and decree dated 30.06.2014 passed in https://www.mhc.tn.gov.in/judis 23/26 S.A.No.670 of 2017 A.S.No.52 of 2012 on the file of Sub-Ordinate Judge at Kallakurichi confirming the judgment and decree dated 18.01.2012 passed in O.S.No.226 of 2006 on the file of I Additional District Munsif Court, Kallakurichi.
b) the suit is decreed in respect of main relief for specific performance in so far as interest of respondents over the agreement mentioned property namely 4/15 share instead of 1/3(5/15) as agreed in the agreement.
c) In the above facts and circumstances of the case, there will be no order as to costs.
d) Consequently, connected miscellaneous petition is closed.
22.12.2023
Index : Yes
Internet : Yes
Neutral Citation Case : Yes
nr
To
1.The learned Sub-Ordinate Judge, Kallakurichi
https://www.mhc.tn.gov.in/judis
24/26
S.A.No.670 of 2017
2.The learned I Additional District Munsif Judge, Kallakurichi.
S.SOUNTHAR, J.
nr S.A.No. 670 of 2017 and C.M.P.No.17405 of 2017 https://www.mhc.tn.gov.in/judis 25/26 S.A.No.670 of 2017 22.12.2023 https://www.mhc.tn.gov.in/judis 26/26